Citation Nr: 0909879
Decision Date: 03/17/09 Archive Date: 03/26/09
DOCKET NO. 07-24 946 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to payment or reimbursement for an additional 12
college credits earned while enrolled at the University of
Utah from August 2005 to December 2005 and from January 2006
to May 2006 as Dependents Educational Assistance (DEA)
benefits, pursuant to Chapter 35 of Title 38, United States
Code.
REPRESENTATION
Appellant represented by: Armed Forces Service
Corporation
ATTORNEY FOR THE BOARD
N. T. Werner, Counsel
INTRODUCTION
The Veteran was granted a total rating based on individual
unemployability (TDIU) effective from July 17, 2006. The
appellant is his daughter.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2006 action by the VA
Education Center in Muskogee, Oklahoma. In that decision, VA
only agreed to reimburse the claimant for 9 of the 21 credits
hours earned while enrolled at the University of Utah from
August 2005 to December 2005 and from January 2006 to May
2006. Accordingly, the claimant is seeking reimbursement for
the remaining 12 credit hours earned during these time
periods.
FINDINGS OF FACT
1. The preponderance of the competent and credible evidence
shows that the claimant was enrolled as a pre-art major at
the University of Utah from August 2005 to December 2005 and
from January 2006 to May 2006.
2. The preponderance of the competent and credible evidence
shows that the 21 credits the claimant earned from August
2005 to December 2005 and from January 2006 to May 2006 at
the University of Utah could be taken by a student who intend
to declare an art major the following year and were required
to declare as an art major the following year.
3. The preponderance of the competent and credible evidence
shows that all of the 21 credits the claimant earned from
August 2005 to December 2005 and from January 2006 to May
2006 at the University of Utah are general education credits
which count toward the 122 credit hours she requires to
obtain her degree in Mass Communication from the University
of Utah.
CONCLUSION OF LAW
The criteria needed to obtain payment or reimbursement for an
additional 12 college credits earned while enrolled at the
University of Utah from August 2005 to December 2005 and from
January 2006 to May 2006 as Dependents Educational Assistance
benefits, pursuant to Chapter 35 of Title 38, United States
Code, are met. 38 U.S.C.A. §§ 3501, 3523, 3680A (West 2002);
38 C.F.R. §§ 21.3021, 21.4200, 21.4250, 21.4252 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA)
As explained below, the Board has determined that the
evidence and information currently of record are sufficient
to substantiate the appellant's claim. Therefore, no further
development is required to comply with the notice or duty to
assist provisions of the VCAA even if these requirements were
applicable to the current claim. See Barger v. Principi, 16
Vet. App. 132 (2002).
The Claim
The claimant argues that VA should reimburse her for an
additional 12 college credits earned taking art courses while
enrolled at the University of Utah from August 2005 to
December 2005 and from January 2006 to May 2006.
Specifically, she asserts that she earned these credits
taking courses while a pre-art major and that these courses
could only be taken by a student who intend to declare an art
major the following year. According to her, these courses
were required to declare as an art major the following year.
Even though she subsequently decided to declare her major the
following year as Mass Communication, these credits still
counted toward the 122 credit hours she requires to obtain
her degree in Mass Communication.
For purposes of DEA benefits pursuant to Chapter 35 of Title
38, United States Code, the appellant is an eligible child.
See 38 U.S.C.A. § 3501(a)(1)(A)(ii); 38 C.F.R. §
21.3021(a)(1)(ii) (2008).
For purposes of these benefits, 38 U.S.C.A. § 3680A(a)(3)
provides, as to disapproval of enrollment in certain courses,
as follows:
. . . any type of course which the
Secretary finds to be avocational or
recreational in character (or the
advertising for which the Secretary finds
contains significant avocational or
recreational themes) unless the veteran
submits justification showing that the
course will be of bona fide use in the
pursuit of the veteran's present or
contemplated business or occupation . . .
(Emphasis added)
For purposes of these benefits, 38 U.S.C.A. § 3691(a)
provides, as to change of program, in relevant part, that ".
. . each eligible veteran and eligible person may make not
more than one change of program of education . . ."
For purposes of these benefits, 38 U.S.C.A. § 3523(a)(3)
provides, as to disapproval of enrollment in certain courses,
as follows:
any type of course which the Secretary
finds to be avocational or recreational
in character (or the advertising for
which the Secretary finds contains
significant avocational or recreational
themes) unless the eligible person
submits justification showing that the
course will be bona fide use in the
pursuit of the person's present or
contemplated business or occupation . . .
(Emphasis added)
For purposes of these benefits, 38 U.S.C.A. § 3501(a)(5)
defines a program of education as ". . . any curriculum or
any combination of unit courses or subjects pursued at an
educational institution which is generally accepted as
necessary to fulfill the requirements for the attainment of a
predetermined and identified educational, professional, or
vocational objective." (Emphasis added)
For purposes of these benefits, 38 U.S.C.A. § 3501(a)(6) and
(10) define both an educational institution and an
institution of higher leaving as, among other things, a
college.
For purposes of these benefits, 38 C.F.R. § 21.4252 provides
as to courses precluded, as follows:
(b) Avocational and recreational.
Enrollment will not be approved in any
course which is avocational or
recreational in character or the
advertising for which contains
significant avocational or recreational
themes. The courses identified in
paragraphs (b)(1), (2), and (3) of this
section are presumed to be avocational or
recreational in character and require
justification for their pursuit . . .
(2) Any music course, instrumental or
vocal, public speaking course, or course
in dancing, sports or athletics, such as
horseback riding, swimming, fishing,
skiing, golf, baseball, tennis, bowling,
sports officiating, or other sport or
athletic courses, except courses of
applied music, physical education, or
public speaking which are offered by
institutions of higher learning for
credit as an integral part of a program
leading to an educational objective . . .
(4) To overcome the presumption that a
course is avocational or recreational in
character, the veteran or eligible person
will be required to establish that the
course will be of bona fide use in the
pursuit of his or her present or
contemplated business or occupation.
(Emphases added).
It is the responsibility of the Board to weigh the evidence
and determine where to give credit and where to withhold the
same. Evans v. West, 12 Vet. App. 22, 30 (1998). In so
doing, the Board may accept one opinion and reject others.
Id. Thus, the Board must determine the weight to be accorded
the various items of evidence in this case based on the
quality of the evidence and not necessarily on its quantity
or source.
Initially, the Board notes that the record shows that in
April 2007 the agency of original jurisdiction contacted an
individual at the University of Utah. This person informed
VA that even though the claimant was attending school full-
time from August 2005 to December 2005 and from January 2006
to May 2006 only 3 of the credits she earned during this
first time period and only 6 credits she earned during this
second time period counted toward her degree. No rationale
for this conclusion is found in the record. Moreover, while
the May 2007 statement of the case noted that the person that
VA contacted in April 2007 was the "certifying official" at
the University of Utah, no evidence to substantiate this
claim or the authority of the person VA talked with to
provide this information is found in the record.
On the other hand, the Board notes that in April 2007 VA
received letters from the claimants Academic Advisors at the
University of Utah. In these letters, her advisors notified
VA that the claimant was enrolled as a pre-art major at the
University of Utah from August 2005 to December 2005 and from
January 2006 to May 2006; the courses and the 21 credits the
claimant earned for them during this time could only be taken
by a student who intend to declare as an art major in the
following year and were required to declare as an art major
the following year; and all of the 21 credits the claimant
earned during this time, even though she decided to not
declare as an art major, are general education credits which
count toward the 122 credit hours she requires to obtain her
degree in Mass Communication. Similar claims were also made
by the claimant and her father in letters received by VA in
April 2007.
The Board finds that the well-reasoned and articulated
explanation received from the claimant, her advisors, and her
father regarding the outstanding 12 course credits for
classes taken at the University of Utah from August 2005 to
December 2005 and from January 2006 to May 2006 outweighs the
unsubstantiated April 2007 statement by the "certifying
official" at the University of Utah. Evans, supra.
Moreover, the Board finds that these statements provide both
competent and credible evidence that the outstanding 12
course credits were earned in the pursuit of her major at
that time, pre-art, and these credits are of bona fide use in
the pursuit of her current major in Mass Communication at her
college (i.e., the University of Utah) and ultimately her
contemplated occupation. See 38 U.S.C.A. §§ 3501,
3523(a)(3); 38 C.F.R. § 21.4252(b)(4). Likewise, the Board
finds that the claimant has overcomes the presumption that
these 12 outstanding course credits were avocational or
recreational in character. See 38 U.S.C.A. §§ 3501,
3680A(a)(3); 38 C.F.R. § 21.4252(b)(4).
Under these circumstances, the Board concludes that the
claimant is entitled to payment or reimbursement as
Dependents Educational Assistance benefits, pursuant to
Chapter 35 of Title 38, United States Code for the additional
12 college credits earned while enrolled at the University of
Utah from August 2005 to December 2005 and from January 2006
to May 2006.
The appeal is granted.
ORDER
The claimant is entitled to payment or reimbursement for an
additional 12 college credits earned while enrolled at the
University of Utah from August 2005 to December 2005 and from
January 2006 to May 2006 as Dependents Educational Assistance
benefits, pursuant to Chapter 35 of Title 38, United States
Code.
____________________________________________
DAVID L. WIGHT
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs